Amendments to Trans Act go against constitutional rights. They must not be implemented

Supporters of the amendment may argue that definitional clarity is necessary for the effective administration of statutory benefits and protections. Yet administrative convenience cannot override constitutional guarantees

India’s constitutional engagement with gender identity reached a transformative moment in National Legal Services Authority vs Union of India (2014). In the judgment, the Supreme Court recognised the right of transgender persons to determine their gender identity as an intrinsic aspect of dignity, autonomy, and equality. The Transgender Persons (Protection of Rights) Amendment Bill, 2026, however, raises serious constitutional questions by fundamentally restructuring the statutory definition of “transgender person”.

At the centre of the amendment lies the redefinition of Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019. The proposed provision restricts transgender identity to two categories: Individuals belonging to historically recognised socio-cultural communities such as hijra, kinner, aravani, and jogta, and persons born with congenital variations in sex characteristics, such as differences in genitalia, chromosomes, gonadal development, or hormonal production. This formulation marks a significant departure from the 2019 Act, which defined transgender persons broadly as individuals whose gender identity does not correspond with the gender assigned to them at birth, irrespective of whether they have undergone medical transition.

The logic underlying this shift is explicitly articulated in the Statement of Objects and Reasons of the Bill. It asserts that the law should not extend protection to individuals claiming gender identity based on “self-perceived” characteristics, but only to those who experience discrimination due to biological conditions beyond their control. The objective, according to the amendment, is to ensure definitional precision so that statutory benefits reach a clearly identifiable class of persons.

This reasoning, however, sits uneasily with the constitutional doctrine articulated in NALSA. The Supreme Court decisively rejected a biologically deterministic approach to gender recognition, particularly the reasoning derived from the English case of Corbett vs Corbett (1970), which treated biological attributes as the definitive marker of sex. Instead, the Court emphasised that gender identity is fundamentally shaped by psychological self-perception and lived social experience. By grounding gender identity within the guarantees of Articles 14, 15, 19 and 21, the Court recognised the right of individuals to determine their gender identity independent of medical or biological validation. Against this constitutional backdrop, the amendment risks reintroducing the very framework that the Court sought to dismantle. By conditioning recognition on congenital variations or membership in specific communities, the Bill privileges biological determinism over self-identification. This shift is not merely terminological; it potentially transforms a rights-based framework into a regime of state verification.

The amendment also reflects a deeper conceptual difficulty in the legal understanding of gender identity. In various scholarships, it is emphasised that “transgender” functions as an umbrella category encompassing a wide spectrum of identities and experiences, including persons who may not undergo medical transition but nevertheless identify with a gender different from that assigned at birth. Legal definitions that rely exclusively on biological markers risk collapsing distinct phenomena — intersex variations, gender identity and socio-cultural communities — into a single category. Such conflation obscures the social realities of gender non-conformity and restructures the legal architecture of recognition around pathology rather than identity.

Equally important is the legislative process through which such a fundamental redefinition has emerged. Meaningful consultation enables lawmakers to incorporate the lived experiences of affected groups into the formulation of legal norms, thereby enhancing both the legitimacy and effectiveness of legislation. The evolution of transgender legislation in India, from earlier draft bills to the 2019 Act, has often been criticised for insufficient engagement with transgender communities themselves. Any attempt to narrow the scope of recognition without sustained dialogue risks reproducing precisely the democratic deficit that such scholarship warns against.

Supporters of the amendment may argue that definitional clarity is necessary for the effective administration of statutory benefits and protections. Yet administrative convenience cannot override constitutional guarantees. The challenge before lawmakers is not to narrow the category of transgender persons but to design institutional mechanisms capable of implementing rights without undermining the principle of self-determination.

Ultimately, the constitutional significance of the 2026 amendment lies in the vision of identity it advances. NALSA articulated a rights-based framework grounded in autonomy and dignity. The amendment, by contrast, appears to revive a classificatory model rooted in biology and community status. In doing so, it risks transforming the constitutional promise of self-identification into a regime where gender identity must be verified rather than recognised.

The writer teaches at Jindal Global Law School